Weaver-Beatty Motor Co.

60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Weaver-Beatty Motor Co. and Retail Clerks International Asso- ciation, Local No. 454, AFL, Petitioner. Case No. 30-RC-991. April 7,1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Clyde F. Waers, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act.2 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c). (1) and Section 2 (6) and (7).of the Act. 4. The Petitioner seeks a unit composed of all new and used car salesmen. The Employer contends that the appropriate unit for purposes of collective bargaining should include all employees. In the alternative, the Employer urges as appropriate a unit of (1) all employees excluding mechanics, metal and paint men, lubrication men, trim men, and car jockeys in the service department; or (2) all employees in the new and used car departments and the service sales- men, parts salesmen, and contract clerks, excluding all other employ- ees; or (3) all employees in the new and used car departments; or (4) all new and used car- salesmen, service salesman, parts salesmen, and contract clerks. The Employer is engaged in the sale and servicing of new and used automobiles. Its operations are divided administratively into five departments, each under the supervision of a department manager. The approximately 15 new and used car salesmen here sought are assigned to the Employer's new and the used car departments. Work- ing under the direction of the general sales manager and the used car sales managers, they perform the customary work of automobile salesmen, i. e., demonstrating, selling, and delivering automobiles, 1 In accordance with the agreement of the parties, the Employer's petition to revoke a subpena duces tecum was referred to the Board for ruling. The Petitioner, by means of the subpena , seeks to have the Employer produce all purchase and sale records , payroll records, rules , regulations, instructions to employees , and other records. It contends that such records will show that the Employer meets current Board's jurisdictional standards and that the unit it seeks is appropriate . As the existing record shows that the Employer meets current jurisdictional standards , and as there is sufficient evidence already In the record to determine the appropriate unit, we find that the additional records sought are unnecessary for a proper determination of the issues here presented . Accordingly, we hereby revoke the subpena duces tecum. 2lnterboro Chevrolet Co, Inc, 111 NLRB 783; Wilson-Oldsmobile, 110 NLRB 534. 112 NLRB No. 9. WEAVER-BEATTY MOTOR CO. 61 preparing necessary affidavits and papers to complete sales transac- tions, transferring automobile titles, and arranging credit. The record shows that, on occasion, the salesmen may change a bat- tery, wash a car, or perform other minor mechanical repairs on an automobile to facilitate sales. They come in contact, on occasion, with service personnel and with the office and clerical employees. In addition, certain office clerical employees prepare and type documents necessary for the completion of sales by the automobile salesmen. On the other hand, the record shows that the duties and working condi- tions of the new and used car salesmen are markedly different from other employees. In these respects the record shows that automobile salesmen, unlike other employees, spend only approximately one-third of their working time selling on the floor of the Employer's premises, and the balance of their time is spent in selling activities away from the Employer's premises. They also work nights and on Saturday afternoon when the remainder of the employees are not on duty. The new and used car salesmen also differ from other employees in that they are paid on a commission basis only; do not receive paid vacations; and are required to be licensed and bonded in conformance with the Colorado statutes. In addition, all new and used car salesmen are required to attend regularly scheduled sales meetings which other rank-and-file employees do not normally attend. The Employer argues, in pertinent part, that (1) its operations are similar to those of a retail sales and service store and the Board should follow its policy with respect to retail stores and -include all of the employees in the unit; (2) if the Board excludes the mechanics and other service personnel, it should include certain office clerical em- ployees as it includes office clericals in selling units; and (3) at the very least, all selling employees, including service salesmen and parts salesmen, should be included. As to the Employer's contention that the unit should include all of its employees, the Board rejected a similar contention in Babb Motors, 108 NLRB 1140, and found that "there is a marked difference in the duties and working conditions of salesmen and office clericals from those of the service department employees," in automobile sales and service agencies. There, the Board excluded salesmen and office clerical employees from a unit of service department employees. In view of the Board's findings in Babb Motors, and on the basis of this record, we shall exclude the service department employees and the mechanics and other service personnel assigned to the new and the used car departments 3 from the unit herein found appropriate. Similarly, the record shows a "marked difference" in the duties and working conditions of new and used car salesmen and of the office 8 The service personnel assigned to the new car department and to the used car depart- ment include 3 new car get -ready men , polisher , undersealer , 4 used car reconditioning mechanics , 3 used car cleaners, 2 general utility employees , and a shag boy. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clerical employees whom the Employer would also include. The sales- men, unlike office clerical employees, devote substantially all of their time to the sale of automobiles, spend only approximately one-third of their time on the floor of the Employer's premises, are paid on a commission basis only, do not receive paid vacations, are required to be licensed and bonded by the State of Colorado, attend regular sales meetings, and are separately supervised by the general sales manager and the used car sales managers' In view of the foregoing, and on the basis of the entire record, we shall exclude the office clerical em- ployees from the unit herein found appropriate. The Employer would also include the service salesmen and parts salesmen. The four service salesmen, working under the supervision of the service manager, meet customers seeking repair work, talk to customers regarding what repairs are necessary, and, on occasion, deliver automobiles to various areas in the Employer's garage. As the record shows that the service salesmen are an integral part of the service department which we have already excluded, and as they do not appear to have substantial interests in common with the auto- mobile salesmen, we shall exclude the service salesmen from the unit herein found appropriate.5 The 3 parts and accessories department salesmen along with 2 inventory clerks and a shipping clerk comprise the parts and accessories department. Working under the supervision of the parts and accessories department manager, the parts and acces- sories salesmen sell accessories and parts to customers, deliver parts and accessories to the mechanics in the service department and to service personnel in the new and the used car departments, and keep records of the stock. As it appears that the Employer's parts and accessories department salesmen have interests closely allied with those of the service department employees whom we have already ex- cluded, and as it does not appear that they have substantial interests in common with those of the automobile salesmen, we shall exclude them from the unit herein found appropriates The Petitioner contends that Herb Divoll, who acts as part-time salesman, has other duties of an executive and supervisory character and should be excluded from the unit. The record shows that Divoll, unlike other salesmen, receives a salary of $125 per month in addi- tion to his regular commissions on the stiles of automobiles, spends approximately 20 percent of his time in advertising work for the Em- ployer, approves automobile appraisals, and, on occasion, presides over sales meetings. However, the record does not affirmatively show 4 Although it appears that three contract clerks, assigned to the new car department, may be supervised, on occasion , by the general sales manager , it also appears that they work under the supervision of the office manager. s See Manna Motor Company, 94 NLRB 103, 0. Z Hall Motors, Inc, 94 NLRB 1180. 6 See Hanna Motor Company, supra ; 0. Z. Hall Motors, Inc. supra. DALLAS CITY PACKING COMPANY 63 that Divoll possesses the attributes of a supervisor described in Sec- tion 2 (11) of the Act. Accordingly, as it appears that Divoll spends a substantial portion of his time selling automobiles, we shall include him in the unit.' We find that all new and used car salesmen at the Employer's Denver, Colorado, establishment, excluding all other employees, office clerical employees, service salesmen, parts and accessories salesmen, guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] MEMBER LEEDOM took no part in the consideration of the above. Decision and Direction of Election. 7 As we do not rely on appendix A of the Petitioner's brief in determining the unit place- ment of Herbert Divoll, it is unnecessary for us to rule on the Employer's motion to strike that portion of the Petitioner's brief. Dallas City Packing Company and Local 528, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL. Case No. 76-CA-791. April 8, 1955 DECISION AND ORDER On February 9, 1955, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the additions and modifications noted below : 1. The Respondent is engaged, at Dallas, Texas, in the slaughtering of cattle and hogs and the sale and distribution of beef and pork prod- ucts. During 1954 it purchased more than $4,000,000 worth of live- stock all from within the State of Texas and it purchased $18,000 worth of spices which was shipped to its plant from outside the State. 112 NLRB No. 12. 1